Attorney Heiner Giese on behalf of the Apartment Association filed an Amicus brief with the WI Supreme Court supporting the City of Milwaukee Housing Authority in their case against Cobbs. This case was heard by the Supreme Court yesterday.

Basically the case revolves around the federal “one strike and you’re out” rule for Section 8 housing and the state of WI’s notice requirements for lease violations. The tenant advocates did a good job in selecting a sympathetic case to proceed on.

As most of you know*, in WI you must give a tenant under a lease for a term a five day notice with right to cure for the first lease violation within the term of that lease. This is fine if perhaps they are a bit noisy one time. However it fails when there is a criminal act. Justice Gableman asked the Legal Action attorney to explain how 1st Degree murder be cured as long as the tenant doesn’t do it again.

WI’s laws on lease violations are generally goofy. You have to give a tenant the right to cure for lease violations including criminal acts under a lease for a term, but you are not permitted to use a 5 Day Breach with right to cure for a month to month tenant even for minor lease violations. So when your month to month tenant has the radio too loud you have to either ignore it or give them a 14 Day without a right to cure.

One of our Association’s legislative initiatives for 2015 is to change the law to permit a 5 Day with right to cure for month to month tenants as well as allowing for a notice with no right to cure for criminal acts regardless of the length of the rental agreement.

The AASEW’s ever popular Landlord Boot Camp is just around the corner. It will be held on Saturday, October 4, 2014 from 8:30 am – 5:30 pm at the Clarion Hotel located near the airport.

At this Fall’s Boot Camp I will be updating everyone on how the courts have been handling and interpreting all of the law changes since Act 76 was passed back in March of this year.

I will also address numerous other of topics that will help you navigate Wisconsin’s complex landlord – tenant laws. Learn how to run your properties with greater profit while staying out of trouble. Landlording can be pretty complex, with a seemingly never ending myriad of paperwork, rules, landlord-tenant laws and simple mistakes that can cost you thousands.

Some of the other topics that will be covered include:

1) How to properly screen prospective tenants

2) How to draft written screening criteria to assist you in the tenant selection process

3) How to comply with both federal and state Fair Housing laws including how to comply with “reasonable modifications” and “reasonable accommodations” requests

4) How to legally reject an applicant

5) What rental documents you should be using and why

6) When you should be using a 5-day notice versus a 14-day notice, 28-day notice, or 30-day notice and how to properly serve the notice on your tenant

7) Everything you wanted to know (and probably even more than you wanted to know) about the Residential Rental Practices (ATCP 134) and how to avoid having to pay double damages to your tenant for breaching ATCP 134

8) When you are legally allowed to enter your tenant’s apartment

9) How to properly draft an eviction summons and complaint

10) What to do to keep the commissioner or judge from dismissing your eviction lawsuit

In the past week I have had three owners ask about pools. First, let me say this is much better than the questions about ice dams that we get most of the year. 😉

If your lease is silent on pools, you may use the Wisconsin state law that requires your tenant to comply with local housing codes.

§707.07(3) (c) A tenant in a residential tenancy shall comply with a local housing code applicable to the premises.

Milwaukee Ordinance define the requirement for pools, starting at 75-20-5

“PERMIT REQUIRED. In addition to the requirements of ch. SPS 390, Wis. Adm. Code, no person shall construct, install, enlarge, establish, maintain or make any alteration to any public swimming place or any outdoor private swimming place without a pool construction permit issued by the commissioner.”

If your tenant is a month to month you must give them a 14 day termination. I suggest if they were otherwise good tenant that you include language such as “We will vacate this notice only if you remove the pool within 48 hours conditioned on not reinstalling a pool in the future without first obtaining all permits and complying with all City regulations”. Attached a copy of the Milwaukee pool regulations.

If you use a year lease you must give them a 5 day breach notice, allowing them 5 days to remove the pool or be evicted.

Why are owners against pools, don’t they want the tenants to enjoy summer? Pools are dangerous even when installed with proper fencing etc.

Our world is full of traps for rental owners… Fail to document the deposit return letter when was sent and a $300 deposit turns into $5,000 with attorney fees. Try to be helpful and not rent the third floor walk up to a person with a bad leg and pay $10,000 in a Fair Housing claim. Likewise tell the person with the companion dog that there is no way you are renting to a person with a Pit Bull and pay another ten grand. Give the tenant with a year lease a 14 day for disturbing the neighbors and breaking your windows or the tenant with a month to month a 5 day for the same reason and you will have to start your court case all over again. The list of pitfalls is endless and growing.

So how do you collect your rent, fill your vacancies and evict tenants without getting in trouble or having expensive do-overs?

You could throw your arms in the air and give up, but that probably is not the most effective approach. You can go through life figuring these are things that only happen to the other guy or to”bad” landlords. That works for a while until you become the other guy. You could hire an attorney to be along side you for every decision, but that probably is not financially effective.

The only viable answer is to know the laws that affect us well enough to either know the answer or know when you need help. You can venture out and learn as you go through your own mistakes, usually a very expensive education – there is a reason they call it the school of hard knocks, or you can get as much education as practical before you find yourself on the losing end of a legal battle.

I started with the learn as you go method. It cost me three grand in 1982 dollars when a tenant that snuck out in the middle of the night sued for their deposit. I lost because I did not know the law well enough to make the proper argument that the 21 days did not start on the day they skipped out, but rather on the day I found they moved. So my letter sent seven days after I found a vacant apartment was proper, but laws only work for those that know them.

My next education was a Bob Smith Landlord Tenant Law course at Marquette. Much more informative and less expensive. A couple of years later Bob condensed this into a full day landlord tenant law for the Association. It cost somewhere around two hundred dollars and included his book “Landlord Defense: Eviction and Collection manual” that had most of the forms needed. For those who want to stroll down memory lane, here is a Sentinel article with a really young picture of Bob:

The Association continues to offer the best landlord tenant law course out there. The Landlord Boot Camp gives you the fundamentals in a full day Saturday class. It is updated to include the latest law changes and includes a 100 page plus manual. It is presented by Attorney Tristan Pettit who writes the standard landlord tenant forms for Wisconsin Legal Blank. Tristan also worked on SB179 that may become law later this month. If it does pass he will have an insiders view on how this law can be best utilized by owners.

The next Boot Camp is Saturday October 26th 8:30 AM to 5;30 PM. Costs is $159 for AASEW members and $249 for non-members.

I have couple questions regarding to eviction. I have given notice, which due yesterday. If the rent arrives shortly after the court paper file, Can I take the payment but still be able to go head with the eviction because I really don’t want to continue with this tenant?

My notice is for August’s rent. When I file the court paper, Am I be able to sue for August’s and September’s together?

Easy part: At the second and third cause hearing you will be able to claim the September rent, October rent if the case drags out that long and damages and should get a judgment assuming personal service or publication of the summons. Whether you will actually collect those amounts is often a different matter.

More difficult part: The Statute changed in March 2012 to state that acceptance of rent after the expiration of a notice terminating tenancy for nonpayment does not void the eviction action. I feel the statute can be read in a manner that it may only apply if you commence the action prior to taking the money. But remember I am not an attorney, just a landlord.

Also in practice it appears that Milwaukee County Courts tend to still view acceptance of rent as an agreement to cancel the eviction.

799.40 Eviction actions.…(1m) Acceptance of rent. If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent, the action under this section may not be dismissed solely because the landlord accepts past due rent from the tenant after the termination of the tenant’s tenancy.

Disclaimer

I am "just a landlord," NOT an attorney or accountant. If you need legal advice, tax advice or have appendicitis, don’t rely on something you read on the internet and do it yourself. Rather, hire a competent professional.